The Disaster Management Act, 2005[1] (“the DM Act”) was enacted in the year 2005, in the aftermath of the Tsunami disaster which occurred on 26th December, 2004. It was enacted under Entry 23 of the Concurrent List, Seventh Schedule to the Constitution “Social Security and social insurance; employment and unemployment”. The rationale for enacting this law under the Concurrent List was that, if the States so desire, they can enact their own laws to meet their respective micro-level requirements. Few State Governments have enacted their own laws, in addition to the national law. Though the DM Act was enacted in 2005, the States were painfully slow in framing rules and draft State plans. It took Supreme Court cases like Gaurav Kumar Bansal[2], Jai Prakash Bisht[3] and Swaraj Abhiyan[4] to fruitfully develop a judicious mix of the top-down and the bottom-up philosophy of the DM Act which is one of the finest principles of this statute. The first National Plan for Disaster Management was finally inaugurated in 2016 in consonance with the Sendai Framework for Disaster Management. Down the years the DM Act’s machinery proved the test of time in different kinds of disasters, though there was always a discussion for amendments to make it more effective.
Covid-19 is the disaster which brought the DM Act to the front stage in all the discussions including discussions focusing on efficacy of the DM Act itself. It is the first pan India disaster being handled after the enactment of the DM Act in 2005. Covid-19 has resulted into unprecedented steps which are also being termed draconian by a few. Before we state with an analysis of the legal position, we must keep in mind the fact that the virus has rapid spread, it knows no boundaries and our healthcare system has certain limitations. Insofar as the preparedness is concerned, it was a challenge for the developed countries also. For India, the challenges were the poor doctor patient ratio, number of ventilators, number of beds per million, unavailability of sufficient test kits, PPEs and face masks, etc. There are also challenges of different ideologies questioning the efficacy of the lockdown itself. The necessary evil, lockdown has certainly brought certain adverse effects on the economy, but we cannot forget lessons of the Great Plague of Marseille i.e. need to balance economics and existence of human race. The balancing of requirements resulted into Lockdowns 1.0, 2.0, 3.0 and 4.0 i.e. the gradual easing of the restrictions.
Legal issues
There are two important legal questions here. Firstly, is the lockdown and the manner in which it is being implemented valid? Secondly, is the procedure under the Disaster Management Act, 2005 being followed properly and, are the restrictions placed therein valid? The first question focuses on the fundamental rights enshrined in the Constitution of India and the second question arises due to the general inadequate understanding of the Disaster Management Act.
No violation of fundamental rights
Insofar as the lockdown is concerned, right to life being the most sacrosanct right takes precedence over all other rights in a scenario like Covid-19. The other two fundamental rights which are primarily getting affected are – fundamental right to move freely throughout the territory of India and fundamental right to practice any profession, or to carry on any occupation, trade or business. Both the abovementioned rights are subject to reasonable restrictions ‘in the interest general public’ of the under Articles 19(5) and 19(6) of the Constitution of India respectively. Consequently, the Centre can impose a lockdown in the entire country considering the rapid spread of Covid-19 and the need to aim at flattening of the Covid curve. Also, as per the judgments of the Supreme Court reasonableness of restriction is to be determined in an objective manner and a restriction cannot be said to be unreasonable merely because in a given case, it operates harshly.
A broad definition of disaster
Insofar as the Disaster Management Act is concerned, it does not enumerate disasters for its applicability. It provides a generic definition of disaster with certain ingredients. Any disaster whether it is a flash flood or drought conditions must have the ingredients stated in the definition of disaster. The definition is broad enough to include an epidemic. The generic definition was given after the experience of Tsunami disaster which was not included in the list of disasters by the Finance Commissions. The purpose was that if we face a disaster in future which is also not covered under the specific definitions, it would be safer to make the definition more generic so that such events/catastrophes could also be covered therein. Covid-19 is accordingly covered under the generic definition of ‘disaster’ given in the Disaster Management Act, 2005.
Procedure under the Disaster Management Act, 2005
There are a few pointers in the Disaster Management Act which need to be appreciated to understand the overall scenario. Firstly, in India, the Home Ministry has the overall administrative control of disaster management. Secondly, the National Disaster Management Authority was established to carry out the objectives of the Disaster Management Act i.e. effective steps for the mitigation of disasters, prepare for and coordinate effective response to disasters. NDMA has the responsibility for laying down the policies, plans and guidelines for disaster management for ensuring timely and effective response to disaster. Thirdly, the Prime Minister is the ex officio Chairperson of NDMA. The Prime Minister can exercise any power of NDMA subject to ex post facto approval of the NDMA. Fourthly, the National Executive Committee assists the NDMA in the discharge of its functions and also ensures the compliance of directions issued by the Central Government for the purpose of disaster management in the country. Fifthly, in case of NEC, the Secretary of Home Ministry is the Chairperson, ex officio because the Home Ministry of the Central Government is the ministry having administrative control of disaster management. Sixthly, every Ministry or Department of the Government of India has a responsibility to take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority. Seventhly, each State Government shall take all measures specified in the guidelines laid down by the National Authority. The State Governments are also expected to cooperate and assist NDMA. The departments of the State Governments have similar responsibilities. Eighthly, the Central Government can issue directions in writing to the State Government, State Authority, State Executive Committee, statutory bodies to facilitate or assist in the disaster management and such Government will be bound to comply with such direction.
Insofar as the procedure under the Disaster Management Act, 2005 is concerned, in the current scenario, the decision-making authority for Covid-19 emergency is NDMA. The Secretary to the Home Ministry who is also the ex officio Chairperson of NEC, is issuing the directions. Under the directions of NDMA, in the exercise of its powers under Section 10(2)(1), the Chairperson of NEC issued directions vide order dated 24th March, 2020 to all Ministries/Department of Government of India, State Governments/Union Territories and State/Union Territory Authorities with guidelines to implement the lockdown measures. Since the issue requires medical intervention, the powers of the Home Ministry under Section 10 were delegated to the Ministry of Health and Family Welfare (deemed to be effective from January 17). Powers bestowed by the Disaster Management Act on the Central Government and NDMA are extensive. The Central Government, irrespective of any law in force (including over-riding powers) can issue any directions to any authority anywhere in India to facilitate or assist in the disaster management. Importantly, any such directions issued by the Central Government and NDMA must necessarily be followed by the Union Ministries, State Governments and State Disaster Management Authorities. As per the scheme of the Act, State/UT Governments cannot dilute these guidelines, they may, however, impose stricter measures than these guidelines as per the requirement of the local areas. Thus, the procedure under the Disaster Management Act is being properly followed.
A fine combination of top-down and bottom-up approach
In the current scenario, the DM Act is being criticised as a statute with top-down approach. This is being highlighted by people who have unpromisingly read the provisions related to the State Plan, State Authority, local authorities and State and district funds. The flexibility given to the State can be understood by the provisions of SDMA and its functions. It may be noted that the State Plan is approved by SDMA and not NDMA; and Chief Minister of the State is ex officio Chairman of SDMA. The SDMA’s functions make crystal clear the flexibility given to the States under the broad framework. The State Disaster Management Plan is to be prepared by SEC having regard to the guidelines laid down by the National Authority and after such consultation with the local authorities, district authorities and people’s representatives as the State Executive Committee may deem fit. Therefore, it shows a judicious mix of top-down and bottom-up approach. The liberty as to who all are to be consulted has been given to the State Executive Committee so as to make it possible to prepare the State Plan in a reasonable timeframe because there are a very large number of stakeholders from village/local bodies to district level. They are expected to include the vulnerability of different parts of the State to different forms of disasters, the measures to be adopted for prevention and mitigation of disasters, the manner in which the mitigation measures shall be integrated with the development plans and projects and the roles and responsibilities of different departments of the Government of the State in responding to any threatening disaster situation or disaster. This gives sufficient flexibility to the States for micromanagement of the disasters being faced by them. It may be noted that micro-level vulnerability assessment to different forms of disasters in not included in the National Plan. Thus, while coastal States shall include Cyclone Mitigation and Response Plans, other States may not include the same since they are not vulnerable to cyclones Similarly, States with hilly terrain may include landslides, which may not be necessary for other States in plains. Therefore, the DM Act is a reflection of a fine combination of both the top-down and bottom-up approach with only macro management policies with NDMA which is necessary for uniformity and micromanagement with States which would vary depending on their requirements. The current Covid-19 guidelines do not reflect control mechanism, they are a reflection of the NDMA’s responsibility towards framing necessary uniform guidelines to manage a particular disaster situation.
Thus, the approach was never overcentralised, that is the reason why in Lockdown 4.0 we see much easing and more powers with the State Governments. A reading of gradual shifts from Lockdowns 1.0 to 4.0 reflects the uniqueness of the DM Act and its adaptability to changing scenario.
Role of the Central Government
The role of the Central Government is to provide assistance to the otherwise functional State Government. Every State Government has sufficient machinery and resources under the DM Act. It aids the State Government with the three M’s – man, materials and money as and when required. The emphasis is primarily on coordination and adoption of a uniform approach in disaster management by the State Governments.
National Plan
One more issue with insufficient clarity is the National Plan. There is no need for an epidemic national plan, the DM Act provides for a general plan which was prepared first in 2016. The 2019 National Disaster Management Plan also deals extensively with Biological Disaster and Health Emergency. There are NDMA Guidelines for management of biological disasters wherein both epidemics and pandemics have been covered. All the States and Union Territories have to function within the overall umbrella of these guidelines.
Appropriate legal framework
The DM Act is a statute which provides for sufficient legal framework and mechanism to manage any disaster situation. A combination of the DM Act with IPC and the Epidemic Diseases Act, 1897[5] is being widely criticised. A fair analysis would reflect it as a strength and not weakness. Penal Codes are a necessary aid to such scenarios in any disaster situation. There is no need to have two different sets of machinery and punishment for one crime. Besides, if any State Government is of the view that there are some legal gaps in micro management of disasters in their State, they can enact their respective State Disaster Management Acts, to supplement the legal provisions further. In fact, few State Governments have already enacted their own State Disaster Management Acts.
Conclusion
The lockdown is constitutionally valid, but the success of this lockdown and fight against Covid-19 depends fully on the coordination amongst various stakeholders. It includes political coordination led by the Central Government. The DM Act provides sufficient legal framework to handle all disaster situations. In fact, it came in handy in case of the epidemic due to its broad definition and already existent mechanism.
We must also learn a few lessons from the countries which are facing the second wave of Covid-19. The economy is being revived with necessary measures, the portals of justice have also looked forward to videoconferencing, the essential question is – in the name of liberties, can we bite off more than what we can chew? Is this not the time that we focus more on our own duties as stated by August Comte and reach at a common understanding of social solidarity as stated by Leon Duguit to handle the current scenario? Is it not necessary for us to think about contributing our best to built better back? Is it not more necessary to coordinate efforts considering the fact that a pandemic is an extraordinary disaster situation? Political differences will always be there in any democracy but it is all the more necessary to unite in case of a national health emergency.
*Functioned as Director (Disaster Management) in the Ministry of Home Affairs; Advisor (Disaster Management) in UNDP; National Coordinator in ADPC and independent consultant. Closely associated with formulation of the Disaster Management Act and National Policy on Disaster Management; implementation of community-based Disaster Risk Management Programme, Disaster Risk Management Master Plan for MCGM; preparing Long Term Training and Capacity Building Strategy of Disaster Risk Mitigation in India and several other initiatives taken by Government of India and various studies for many State Governments.
**Associate Professor, Bennett University, Greater Noida. Prof. (Dr.) Sondhi has taught at some of the most reputed law colleges in India like SLS (Pune), ILS Law College (Pune), NALSAR University of Law (Hyderabad) and Asian Law College (Noida). She was made a Member of State Government Committee for formulation of Rules under the Disaster Management Act 2005. She co-authored a book ‘Disaster Management Law and Policy in India’ with Prof. (Dr.) Shirish Deshpande, Retd. HoD, PGTD Law, RTM Nagpur University. She also authors a blog on Disaster Management Law in India.
[1] Disaster Management Act, 2005
[2] Gaurav Kumar Bansal v. Union of India, (2016) 16 SCC 530
[3] Jai Prakash Bisht v. Union of India, 2016 SCC OnLine Utt 2453
[4] Swaraj Abhiyan v. Union of India, (2016) 7 SCC 498